November 7, 2013 by Robert Franklin, Esq.
Finally. An Australian court has taken an extraordinary step. It’s sentenced a mother to prison for fabricating evidence in a child custody case. Read about it here (The Australian, 11/6/13). It’s long been one of the great scandals of family courts that they refuse to punish parents who lie to them. The unsurprising result is that parents continue to lie under oath in family courts. After all, why wouldn’t they? If there’s no downside and, if the court believes the lie, the possibilities of gaining custody or otherwise improving one’s legal position ratchet up considerably.
In the case reported on, a Perth mother was ordered by the family court in her child custody case to submit hair samples for drug testing. She was concerned that the tests would reveal that she’s a marijuana user, so she prevailed on her adult daughter and a friend to assist her in her scheme to defraud the court and improve her chances at getting custody. The daughter donated her own hair and the friend, who worked at a testing laboratory, PathWest, got a co-worker to sign for the hair sample. Presumably, although the article omits this, test results eventually came back negative for drug usage.
But a glitch arose in the mother’s carefully-crafted scheme. Her ex figured out that Path West doesn’t conduct testing on hair samples. He reported her to the court and she was arrested.
The 47-year-old was sentenced today in the District Court after she was charged by the Corruption and Crime Commission with fabricating evidence with intent to mislead a court.
The woman's 24-year-old daughter and a 37-year-old friend - who was a laboratory assistant at PathWest - were also charged by the CCC with the same offence and sentenced today.
The mother-of-three had to submit hair drug tests as part of a custody battle over her 10-year-old son…
In his sentencing remarks, Judge Michael Bowden said the offence struck "at the heart of the justice system" and must be regarded as serious.
Judge Bowden accepted that all three women acted out of genuine concern for the 10-year-old boy, were very remorseful and unlikely to offend again, but he said the offence was serious and could have seen them jailed for up to seven years.
The mother was jailed for 12 months.
Judge Bowden sentenced the former PathWest worker to 12 months jail, suspended for 18 months. He said while her actions were a significant breach of trust by a public officer, the woman had already lost a much-loved job she held for 10 years and was the sole carer of an 11-year-old daughter.
Judge Bowden fined the the 24-year-old daughter $5000 because she initially declined to help her mother and to some extent had felt "compelled" to act even though she knew it was wrong.
Now, no one reading that would conclude that family courts in Australia have turned over a new leaf and will now begin punishing mothers who lie to them. Judge Bowden, despite the sentence he meted out to the mother, was still at pains to excuse the behavior of the other two women. In his understanding, if a woman has a child and loses her job as a result of her criminal wrongdoing, she shouldn’t be seriously punished for her part in a conspiracy that struck, in his words, “at the heart of the justice system.”
It must be noted that Bowden was right about the nature of perjury. The system of justice in any country entirely relies on its ability to make people tell the truth. If it fails at that, no decision it reaches can be free from doubt. No conviction, no acquittal can be certain. In custody cases, no order of custody can be trusted as being correct. So when courts turn a blind eye to perjury, they themselves strike “at the heart of the justice system.”
And, as countless fathers have complained over several decades, that’s exactly what family courts do as a matter of routine. If you don’t believe the fathers, ask attorneys who practice family law. They’ve been saying since at least the mid-90s that false allegations of child and spousal abuse in order to gain an advantage in custody cases are now considered a matter of course. But how often do you see a mother punished for false claims of abuse. I’ve been writing about family courts for many years and if I’ve ever seen a mother punished for false swearing, I don’t remember it.
As long as courts refuse to lift a finger to punish false swearing, it’ll continue, as it does to this very day.
So the PathWest employee made out like Richard Nixon who was never prosecuted for his Watergate crimes because, by resigning the presidency, he’d “suffered enough.” (Back when that happened, I had a friend who was a singer-songwriter and predictably impecunious. When news of the Nixon pardon came out, my friend greeted it with optimism saying that, if he were ever busted for pot possession he could just tell the police that he’d quit being a folk singer and that would be punishment enough. Fortunately, he never had to test his theory.)
As to the adult daughter, Judge Bowden bought her story that she’d felt “compelled” to act. Imagine that as a defense to criminal wrongdoing. No one coerced her, no one held a gun to her head or threatened her family, but the fact that she “felt compelled,” (meaning, I suspect, that her mother browbeat her into going along) meant to the judge that she should escape all but minimal punishment.
The point being that it appears that the lamest excuses imaginable still serve women well in the courts of Australia even when their behavior strikes “at the heart of the justice system.”
We’ve known for a long time that women receive more lenient treatment on average in criminal courts than do men. One August, 2012 analysis of data at the University of Michigan Law School found that, when variables like the severity of the offense, the criminal history of the defendant, and other were equal, men received sentences that were, on average, 63% longer than those given to women. In addition, “women are significantly likelier to avoid charges and convictions, and twice as likely to avoid incarceration if convicted. One likely explanation for those radical, sex-based differences is being a caregiver to a child, a fact that stands out in the case of the PathWest defendant.
In Australia particularly, a similar thing occurs in cases that are unique to family courts. There, it is not only the practice of family courts, but a requirement of legal precedent, that custodial parents who violated family court orders by denying visitation to the non-custodial parent, shall not be punished. Yes, those courts, like all courts possess the power to hold those who violate their orders in contempt, but only family courts refuse to do so. And tellingly, the only orders family courts refuse to enforce via their contempt powers are visitation orders which, needless to say, “benefit” almost exclusively fathers. About 90% of non-custodial parents in Australia are fathers. That information comes from the excellent long essay, Kangaroo Court by Australian historian John Hirst.
So, although I seriously doubt it heralds a brave new world of punishing perjurers in family courts, the reported-on case is cause for optimism. Lying under oath is illegal; if courts punish those who do it, maybe there’d be less perjury. I know it’s a radical concept, but there it is.
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